Saturday, August 30, 2014

I've just been watching the Prime Minister announcing the resignation of Judith Collins. I'm glad to see her go. A Minister using a sewer-blogger to undermine their own chief executive is absolutely toxic. But rather than resigning, she should have been sacked. Hell, she should have been sacked long ago for Oravida and her relationship with Slater.

(And if the suggestions that she was leaking SFO information to subjects of investigations is true, she shouldn't just be sacked, but prosecuted)

New Zealand Herald journalist Jared Savage was "passing information directly to [Slater] that the Herald can't run and so are feeding me to run on the blog". Which doesn't sound a lot like journalism to me. Is he reporting on power, or trying to exercise it?

Slater's little clique fed information to journalists Fran O'Sullivan, Jock Anderson and Matt Nippert. Unlike David Fisher, they have not yet come clean about their role as transmitters of whaleshit.

Slater "arranged with Matthew Hooton for iPredict... to have a new stock released so people can invest on the probability of Adam Feeley getting the sack before Christmas or leaving". So iPredict dances to whalesong, with Hooton as the cutout. Which really makes you wonder how many of their other contracts are political placements for the extreme right.

Hopefully we'll see the Herald and iPredict fronting up about their role in this. But I'm not holding my breath.

In 2003, the Court of Appeal delivered a bombshell ruling in Ngati Apa v Attorney-General: the crown had not generally extinguished Maori customary rights over the foreshore and seabed, and ownership of particular areas of the foreshore and seabed was a question of fact to be determined by the Maori Land Court in accordance with the facts and history of the area. The resulting Pakeha outrage at the idea that Maori might still have property rights led to the passage of an unjust raupatu law, the formation of the Maori Party, and its subsequent alliance with National to pass pretty much the same law under a different name.

The ruling is the result of a fifteen-year long case over ownership (and compensation for its loss) of a significant stretch of the Waikato River. The Pouakani people used to own it, but by the usual practice of theft through the Maori Land Court and acquisition under the Public Works Act, it was stolen from them. So they went to court, arguing (due to a prior case, Re the Bed of the Wanganui River) that the government at the time hadn't informed them of the conveyancing presumption that the river would be transferred along with its banks, and that it therefore owed them a fiduciary duty over the river. The crown argued that it owned it outright thanks to the Coal-Mines Act Amendment Act 1903 (which asserted crown ownership of the bed of navigable rivers), but in 2012 the Supreme Court ruled that that was not the case. And now they've gone one better, ruling that the crown may not have acquired title at all, and explicitly overturning Re the Bed of the Wanganui River as a general precedent. Instead, they've applied the core principle of Ngati Apa that aboriginal title continues until lawfully extinguished, and that absent a general extinguishment, it needs to be determined according to the facts of local custom and history. In the case of the Pouakani people, it means they may or may not own the riverbed, depending on Maori custom at the time.

There are two things which make this ruling explosive:

the same principle applies to other significant non-navigable rivers, which could lead to a flood of litigation;

Which means that no doubt we'll soon see Pakeha banging their racist drum about the prospect of Maori "owning the rivers" (even though such ownership has been a feature of several Treaty settlements already) - possibly aided by a partly government-owned company's PR machine (which would surely be a breach of the government's Treaty obligations).
I've already seen people arguing that the government will not allow the ruling to stand. Which is going to put the rump Maori Party in a very unpleasant position, and is likely to further aid Internet-Mana. But the big problem here is that legislating over it directly undermines the settlement in New Zealand Maori Council v Attorney-General (1987) (the lands / SOE case). The core promise there was that land (and subsequently, water) subject to Maori claims could be transferred to SOEs, and even privatised, as long as the rights of those potential claimants were protected. The case is the foundation of modern Treaty jurisprudence (it established the idea that the Treaty was a partnership and the crown owed Maori a duty of good faith), and the Supreme Court relied on it just last year to overturn a challenge to the sale of Mighty River Power, on the basis of that protection of rights and "the proven willingness and ability of the Crown to provide such redress". Tearing that up would call every other settlement - and the good faith of the crown - into question. No sane government should want to go there.

Friday, August 29, 2014

During the course of the Waikato Regional Council inspections that led to the prosecution, Bilkar Singh, a director of B & V Singh Limited, asked the inspecting officers not to report the matter to their supervisors and to take water samples in a manner that would not show any environmental effect.

Repeated comments such as “how much to make it go away” were made by Mr Singh to the two officers.

Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any official in respect of any act or omission by him or her in his or her official capacity.

[Emphasis added]

This appears to be open and shut. He repeatedly offered a bribe in an attempt to influence officials. And he should be prosecuted and jailed for it. Eradicating corruption means not just making sure officials don't accept bribes, but also that corrupt people don't offer them.

Yesterday, the Independent Police Conduct Authority released a report finding that police routinely exceeded their powers in shutting down "out of control" parties, invading people's homes, assaulting people, using excessive force (in some cases causing significant injury), and shutting down parties and forcing people to disperse without any statutory basis. In other words, that they routinely commit trespass, aggravated burglary, and assault. To their credit, the police have accepted the recommendations, and are training their officers so they don't abuse their powers in the future (but naturally, there is no talk of prosecuting those who have). Unfortunately, the Police Association thinks this is the wrong approach:

The Police Association wants the law changed so officers can shut down out-of-control parties.

[...]

Police Association President Greg O'Connor said there should be a law change.

"I would imagine that there will be people in streets near where parties are taking place, who become aware that police can't do much about it, that may start putting pressure on their own local politicians to give the police those powers."

To which you have to ask "whatever happened to liberty"? These are situations where people are breaking no laws, or where those who are can be dealt with individually (something the law already permits). Instead, O'Connor is proposing at best a collective punishment of those who happen to be in the vicinity of someone who has broken the law, and in practice an open-ended power by police to suppress any gathering on private property they don't like. This is utterly inconsistent with the freedoms of assembly, association and expression, not to mention the right to liberty affirmed in the BORA. If you are not committing any crime, the police simply have no business interfering in your life, and should leave you to get on with it.

There is a name for states which suppress private gatherings. They're called "tyrannies". And greg O'Connor wants to turn us into one. And insofar as he can be assumed as an elected official to speak for the police rank and file, so does our police force. Isn't it time we reined them in, and defended our basic liberty from the arbitrary excesses of these uniformed dictators?

The gap between rich and poor is by far the biggest issue facing New Zealand three weeks before election day, a new poll has found.

The Roy Morgan Research poll of 966 people in July and August shows that concerns about inequality and other social issues have increased dramatically as worries about jobs and the economy have waned in the past three years.

Almost a fifth of New Zealanders (18 per cent) now say poverty, the gap between rich and poor or the imbalance of wealth is now "the most important issue facing New Zealand", up from just 4 per cent in the equivalent poll just before the 2011 election.

So what's the government proposing to do about it? Nothing, except tease about more tax cuts to the rich. Meanwhile, both Labour and the Greens have credible policies to increase taxes on the rich, tax capital gains, and lift those at the bottom by increasing wages and social support. If inequality is the issue, then they deserve to win.

Whitebaiters are giving up on the Opihi River because of high levels of algae.

Timaru man Brian Bennett has been fishing the river for almost 70 years. After leaving his net in it for 15 minutes yesterday, he found it covered in algae. "It's the worst I've ever seen."

Bennett said the problem had worsened in the past five years, despite an improvement in 2013.

Fellow angler and whitebaiter Des Thomas, who has given up fishing in the "black, filthy" river, said he "wouldn't eat it [whitebait] if I caught it" in the Opihi.

He believed a combination of the Opuha dam reducing water flows and rising nutrient levels had allowed algae to thrive in recent years.

This isn't a one-off incident; its been going on for years. And the major culprit is the dam blocking "flushing flows". It could of course release them manually, but that's water which could be sold to farmers and turned into cowshit, so they won't.

The upshot: irrigation ruins rivers. Rather than encouraging it, the government should be restricting it to protect our environment and recreational values.

Its election time. The blog should be humming. Its not. Why? Because there's not enough policy to comment on.

Note that this is not a complaint about Dirty Politics. How power is exercised and the ethics displayed in doing so is absolutely a legitimate election issue, and something we should talk about a lot more. But I've basically said what I want to say on that, so absent new developments, there's nothing there.

No, the problem lies with our political parties - and specifically, the government. The major opposition parties - the Greens and Labour - are releasing comprehensive policy. Its nice and chewy and the sort of thing I love to post about. Unfortunately, much of it has been pre-announced to prevent surprises, while Labour are dumping policies due to spending constants. Meanwhile, from the government, the election has been a policy-free zone. Their "policy" is to keep everything the same as it is, so they have nothing new to announce. So instead we get a boat going backwards while claiming everything is going forwards, pictures of John Key, some obligatory non-committal teasing about tax cuts, more John Key, and did I mention the John Key? There is an empty void at the heart of this election, in the form of a government with no ideas and no plan, just a desire to cling to power and their fat ministerial salaries. And they are desperately trying to paper over it with smiling pictures of the Prime Minister.

Thursday, August 28, 2014

Labour released its environment policy today. While supposedly predicated on the idea of "no healthy economy without a healthy environment", its... weak. On the core issue of the RMA, they reject National's latest round of gutting, but basically accept all the rest. Oh, they'll establish a panel to consider the effects of the cumulative amendments to the Act, but that's a rather weak action, and there's no commitment to actually do anything to restore environmental standards, remove call-in powers, or restore community decision-making. And a lot of their proposed actions basically boil down to "we'll manage it better" - not appealing when what is needed is actual change.

They promise more National Policy Statements to provide guidance to local authorities on biodiversity, estuaries, and onshore gas exploration - but won't say what will be in them. They do make specific commitments around the NPS for freshwater, promising that lakes and rivers will be "swimmable, fishable and suitable for food gathering" and that they will set timelines for cleanup.

On dirty dairying, they're promising improvements to farm practices and a resource rental for irrigation water. But they won't phase out irrigation subsidies, which fund further pollution of our rivers.

On offshore drilling, they won't ban deepwater exploration - the furtherest they'll go is requiring "international best practice" (you know, the same as led to this). Oh, and they'll "reflect" on the Parliamentary Commissioner for the Environment's report on onshore drilling. Which is politician for "not going to do anything".

Overall, there's some promising stuff about freshwater and dirty dairying, but the rest of the document is a commitment to National's status quo. If you want stronger environmentla protections, you need to vote for a party which actually promises them.

Britain is "deeply elitist" because people educated at public school and Oxbridge have in effect created a "closed shop at the top", according to a government report published on Thursday.

The Social Mobility and Child Poverty Commission said its study of the social background of those "running Britain" was the most detailed of its kind ever undertaken and showed that elitism was so embedded in Britain "that it could be called 'social engineering'".

Alan Milburn, the Labour former cabinet minister who chairs the commission, said that, as well as being unfair, this situation was unacceptable because "locking out a diversity of talents and experiences makes Britain's leading institutions less informed, less representative and, ultimately, less credible than they should be".

The statistics are dismal. Only 7% of UKanians went to public schools, but they make up 71% of senior judges, 55% of top civil servants, 53% of senior diplomats, and 45% of board chairs. Less than 1% went to Oxbridge, but graduates of these two universities make up 75% of senior judges, 59% of Cabinet Ministers, 47% of newspaper columnists, and 24% of all MPs.

This is not about talent. It is about social networks, who you know. And those within those social networks use them to advance themselves and their friends and lock others out, regardless of merit. The result is a government and a society which works in the interests of a narrow elite, while ignoring the concerns of everyone outside it. A government which talks down to people, rather than listening to them. And fundamentally, a state which is illegitimate, despite its trappings of democracy. They're not a representative democracy; they're a self-perpetuating oligarchy.

Owen Jones calls it a racket by the establishment, and he's right. As for what to do about it, he recommends investment in early childhood education, ending the charitable status of public schools (the oh-so-polite British term for "private schools for the rich"), and banning unpaid internships. But why on earth would the British elite support that?

How afraid are public servants of Judith Collins? So afraid they won't perform their legal duty and transfer "political" OIA requests to her office.

An FYI user asked the Ministry of Justice for information about the handling of OIA requests similar to those sent by Cameron Slater - basically to get some hard evidence on whether his explanation held, or whether journalists were being dicked around. The request was obviously misdirected, and should have gone to the Minister. In such circumstances, the receiving agency has a clear legal duty to transfer the request. And they always do.

Except in this case, where the Ministry staffer asked that the requester call them for an explanation (helpful), before effectively refusing the request. They did at least provide contact details for the Minister's office, but didn't transfer. I have never seen this before in a decade of requests. In my experience, where an agency doesn't hold the information sought, but knows who does (or might), they simply transfer it, problem solved. I'd especially expect this from the Ministry of Justice, which has a good record on OIA requests (and which is responsible for administering the law).

Of course, that means that there's a highly political OIA transferred to the Minister's office with a public servant's name on it. And in the wake of the revelations in Dirty Politics about what the Minister does to public servants who displease her (leaks their name and contact information to the sewer, where they receive death threats from her panting fanboys), I can understand why they might not want to do that. But it is unlawful, not to mention dysfunctional. And if public servants are this afraid in performing their routine legal duties, imagine how afraid they are if they have to give the Minister advice she doesn't want to hear...

Wednesday, August 27, 2014

Chief Ombudsman Dame Beverley Wakem said issues which would be examined included government departments having to seek "sign off" from their ministers before releasing information when there was no reason to do so.

[...]

"I have observed unnecessary steps and referrals upwards. I have heard of at least five layers of approval before something can be released. That's absurd."

She said the unnecessary upwards delays included referrals to ministers for approval to release information. There were also offices which had "delayed things beyond what is reasonable" while others did "incredibly well".

Good. Its become increasingly apparent that there are problems, particularly around Ministerial control-freakery and abuse of the "no surprises" policy. And this is resulting in delays and information being withheld. I've got a complaint in ATM about the SSC's election period OIA guidance, which is basically "delay everything for referral to the Minister", and while it has all the appropriate caveats around ensuring that requests are responded to in a timely manner and not delaying responses simply because the information is embarrassing to a government facing an election, the practical effect (as observed on FYI) is that any remotely controversial request is delayed until (conveniently) the first working day after the election.

OTOH, she's explicitly not looking at rorting of the system, as seen here, or in the case of Cameron Slater's now-infamous OIA request to the SIS. Which seems to be a major gap in the inquiry. Shouldn't Ministerial bias in application of the law be examined too?

The Greens announced their healthy homes policy today, promising a warrant of fitness for rental housing and funding to insulate 200,000 homes. And my initial reaction was "meh, Labour and National are offering this too". Which is a sign of how conclusively the Greens have won this policy argument, and convinced everyone. When they first pushed for a government insulation scheme and rental WOFs, National denounced it as a waste of money and a threat to landlords. Now they're implementing both policies and the debate is just over timing and numbers. Which rather robs policy announcements of their impact, but its a great problem to have.

But there is one important difference in the Greens policy: improved security of tenure for renters, and a move to a European model where landlords can't just chuck you out without a reason. Unfortunately the driving force here is increasing housing unaffordability, meaning more people will be renting for longer (or even forever). But it seems like a good solution to the problem. And now doubt, in three or six years, we'll see Labour and National adopting it too.

In 2007 Parliament passed the Electoral Finance Act. One of the changes it made to our electoral law, retained in the subsequent amendments, was to massively increase the penalties for electoral offences. The penalty for a corrupt practice was doubled, from one to two years imprisonment. That for an illegal practice was increased from a $3,000 to a $40,000 fine. The message was clear: Parliament took electoral offending seriously.

The police's excuse is that offenders are mostly first-timers and that warnings are appropriate. That may be true in the case of double voters (but even so...). But its certainly not true in the case of political parties violating advertising and donations law. These are organisations who know what they're doing, who have past experience, who should know better. The police also say that they will prosecute "high-end" offending against the Electoral and Broadcasting Acts. Their past behaviour shows otherwise. And against a backdrop of Parliament increasing penalties, it signals a conscious desire to thwart Parliament's will.

So, the Electoral Commission considers complaints, refers them to the police, who then do nothing. While on paper we have a law, in practice it means nothing. Its a farce, which will only be fixed by taking the job away from police and giving it to someone who actually cares, like the Electoral Commission (OTOH, having watched Media Tkae last night, that might not be such a good idea).

But on the upside, you can probably play "Planet Key" on the radio, because the police will never do anything about it.

Tuesday, August 26, 2014

The Intercept has a major expose today on the NSA's ICREACH program, a front-end for searching their massive databases of communications metadata. In other words, their spycloud.

ICREACH has been accessible to more than 1,000 analysts at 23 U.S. government agencies that perform intelligence work, according to a 2010 memo. A planning document from 2007 lists the DEA, FBI, Central Intelligence Agency, and the Defense Intelligence Agency as core members. Information shared through ICREACH can be used to track people’s movements, map out their networks of associates, help predict future actions, and potentially reveal religious affiliations or political beliefs.

[...]

The search tool was designed to be the largest system for internally sharing secret surveillance records in the United States, capable of handling two to five billion new records every day, including more than 30 different kinds of metadata on emails, phone calls, faxes, internet chats, and text messages, as well as location information collected from cellphones. Metadata reveals information about a communication—such as the “to” and “from” parts of an email, and the time and date it was sent, or the phone numbers someone called and when they called—but not the content of the message or audio of the call.

And as the graphic shows, the GCSB is feeding them.

Its a horrifying insight into the scale of NSA and GCSB surveillance. Information supposedly being collected for national security purposes is being used by fuck knows who for who knows what - and often explicitly to circumvent legal restrictions on law-enforcement surveillance. This isn't what spy agencies are supposed to do. They need to be shut down and their surveillance networks permanently destroyed.

FYI, the public OIA request service, has just posted its statistics for the year. There are a number of caveats around the data: the closure date is taken as the date of last response (which in some cases is not actually related to the request), and it doesn't capture extensions at all. But despite that, one thing is clear: a large number of agencies are not responding to requests in a timely fashion. And a significant number appear not to be responding at all. When in the first few rows you can spot multiple agencies which have left requests unanswered for six months, something is seriously wrong.

And remember, this is just the requests made through FYI, where there is public pressure to respond. The full picture could be even worse. Unfortunately, no-one is looking at that picture. Despite a recommendation from the Law Commission that agencies keep statistics and a body examine them for oversight purposes, nothing has been done. And with no-one watching, there is simply no incentive for agencies to comply with the law.

The 90-minute debate at Auckland’s Q Theatre will give the parties a chance to convince both live and online audiences to vote for them based on the action they are taking on climate change. It will be hosted by Samantha Hayes from TV3's 3rd Degree and has been organised by a group of New Zealand’s leading environmental, climate change and development organisations.

The confirmed politicians are National’s Tim Groser, Minister for Climate Issues, Labour deputy leader David Parker, Green co-leader Russel Norman and New Zealand First deputy leader Tracey Martin. Other party representatives will be announced in coming days.

Apparently there's limited seats, so you might want to buy a ticket early. Otherwise it will be livestreamed here.

For the past two decades (excluding a small gap between 2008 and 2011), Australia has pursued a policy of mandatory detention of refugees to "deter" them from fleeing war and persecution. Initially this detention was within Australia at purpose-built detention centres, but since 2001 refugees have been dumped in island gulags run by corrupt small island client-states as part of the "Pacific solution".

Serco Australia has been the biggest beneficiary, with two contracts worth a total of $3.2bn, including the overall single largest contract worth $2.9bn. Serco Australia is contracted to manage various onshore detention facilities.

The contract value does not necessarily equate to the total amount paid to the contractor, and Guardian Australia understands that detention centre contract values may be higher than they need to be to account for the possibility of detention centres having higher than expected populations.

Transfield Services has nine contracts worth a total of $2.46bn, including a recent contract for $2.1bn to manage the offshore detention centres on Manus Island and Nauru.

The Salvation Army has been awarded four contracts for a total of $113.2m, with three covering “welfare and support services” for offshore detention and one covering welfare services for people in community detention.

They've also shown the ruinous cost of this sadism. Onshore detention costs A$157,014 per person per year, community detention only A$21,952. But spaces in Australia's Pacific gulags cost A$859,363 - almost a million dollars an inmate. And all to protect the government from political criticism from a vocal racist minority.

And of course now businesses are being paid billions of dollars for the infliction of misery, they have a direct incentive to ensure that such policies continue. Government sadism is profitable (for some). And so they will lobby to protect that revenue-stream, regardless of its morality.

Monday, August 25, 2014

When Bill English launched the PREFU, he announced that tax cuts were off the agenda. But today, with the government still mired in dirty politics over its relationship with Cameron Slater, that's apparently no longer true:

However, campaigning in Auckland today, National's leader John Key said the party was crunching numbers "to see what sort of head room we've got."

"If we can say a bit more definitively about that, we will, coming into election day."

Reminded of English's comments, Key said that the finance spokesman was "talking about an actual package of x and y. If you go and ask him the other question - 'will we talk about the outline of what might happen?' - you've got a different answer."

Its the same sort of bullshit we're seeing over the Prime Minister versus his "office". And the upshot is that nothing John Key says can be trusted. Even the clearest and most unequivocal statement may be arbitrarily redefined later to meet the needs of the moment, no matter how torturous an abuse of the English language it becomes.

If the Prime Minister has changed his mind, and now wants to offer tax cuts as an election bribe to his rich mates, he should say so. Equally, if he hasn't, he should admit it. Instead, he's trying to have it both ways, with deniable promises which can be read either way. But the result is that they are meaningless and valueless. Only a fool would vote for someone so transparently dishonest.

Last week, Campbell Live carried a report alleging a breach of statutory reporting requirements by EQC. EQC had failed to file a statement of performance expectations for the coming year, an apparent violation of section 149C of the Crown Entities Act. Because it also potentially affectd the government's financial position in the PREFU, I was all over it, and demanded that the responsible EQC staff be prosecuted.

I was wrong.

Checking today when deciding whether to complain to the Ombudsman over OIA requests related to it, I noticed something important: s149C only came into force on July 1 this year. The government's financial year ends on June 30, so EQC was not required to produce a statement of performance expectations this year (it will however be required to produce one next year). There has been no breach of statutory reporting requirements, and EQC staff are not at fault. They may be at fault for all sorts of other things, but not for this.

(And in case anyone is wondering: no, I haven't received a demand for a correction, or any communication on the topic at all. I noticed I'd made a mistake, and it is significant enough to deserve a public correction).

The Climate Voter campaign was in court last week trying to argue that it is not an election advertisement. The decision has been reserved, but hopefully it'll be out soon (if only because failing to get it out before the election would miss the point). But meanwhile, thanks to a switch from online to physical promotion, the campaign has now hit 45,000 members - 2% of the 2.26 million who voted last election. Which makes it more popular than any of the government's current coalition partners...

If the campaign continues to grow, it is going to become difficult to ignore. 2% of the vote is a definite constituency, and enough to shift the result as the polls narrow. If it makes it to 70,000 - about 3% of the vote, and not unthinkable at current rates - then I think the parties are going to have to sit up and take notice. The major impact might not be on this election though - rather it will be on policy, as parties realise that people do care, and want real action. And if that happens, I think the campaign can be regarded as a success.

National launched its campaign over the weekend, with a new policy aimed at the housing crisis: increased grants for newly-built first homes. Supposedly this will help 90,000 people over five years, but as Polity points out, either they're massively overestimating numbers, or the actual assistance people will receive will be derisory. Looking at their best-case example highlights another problem:

Housing Minister Nick Smith said a couple in Auckland each earning $50,000 who had contributed to Kiwisaver for five years would be able to withdraw $35,000 and receive a $20,000 Kiwisaver Homestart Grant, making a $55,000 deposit.

And because the Welcome Home Loan Scheme allowed a 10 per cent deposit, the would be able to buy a home up to $550,000 in value.

Which, according to Westpac's mortgage calculator, will cost them $3159 a month in mortgage payments on a 30-year term. Meaning they'll be spending 38% of their pre-tax (and 45% of their after-tax) income simply on their mortgage. Meaning it is unaffordable according to the 30% of after-tax income threshold used by Statistics New Zealand. This isn't going to help people pursue the kiwi dream. Instead, as with so many other National policies, its just a PR scam, designed to give the impression of doing something while actually doing nothing.

Friday, August 22, 2014

On July 30, we learned via Question Time that Murray McCully had allowed an email informing him that the Malaysian government was not waiving Muhammad Rizalman’s diplomatic immunity to sit unread in his mailbox for an indeterminate amount of time. I immediately fired off an OIA seeking one simple fact: the time and date that that email was opened and read. Today, at 16:45 - dump time - I received the response from McCully's office. And it is the most bullshit OIA response I have ever received.

The request has been refused under sections 6(a) (international relations), 9(2)(a) (privacy), 9(2)(g)(i) (free and frank advice), 9(2)(ba)(i) (subject to an obligation of confidence), and 9(2)(h) (legal privilege). The problem? None of these grounds can possibly apply:

6(a) doesn't apply because the information sought simply doesn't relate to foreign relations. It relates to one action (or rather, inaction) of a New Zealand government Minister. The content of the email could be covered by that ground, but its the metadata that has been asked for, and some of that metadata (and the existence of the email itself) is in the public domain.

9(2)(a) does not apply because the information sought is not personal information, but information about an official action (or inaction) of a government Minister. Actions performed in public office are by definition not "private".

9(2)(g)(i) does not apply because the information sought is purely factual, not an expression of opinion.

9(2)(ba)(i) does not apply because there is no obligation of confidence involved. Again, this is an official action (or inaction) of a government Minister, not information collected from an outside source.

9(2)(h) does not apply because the information sought simply is not subject to legal privilege. The date and time the Minister deigned to read his email is not legal advice, and it is an abuse of the term to pretend that it is.

And this applies whether the email was opened and read by the Minister or his staff. So what's going on? Sadly, the point here isn't to lawfully withhold the information; instead its just to delay the inevitable release by throwing the kitchen sink at it and hoping that the requester is intimidated (I expect that its also a form response given to everyone requesting information on the topic, regardless of their actual request). And the sad thing is, it will probably work. I'll complain to the Ombudsman, of course - but it will take a week to even get a number, and a month before an investigator can take time to actually look at it (and then years to get a result). By which time any chance of electoral accountability for the Minister's apparent laxness will have passed. The system simply does not work when it most needs to. And that is a deeply depressing thought.
Update (3/9/2014): contrary to my dismal expectations, the Ombudsman is handling the case urgently, and I may get a response before the election.

No bloggers have signed up to join the Online Media Standards Authority. This isn't really surprising. For a start, membership costs $500 a year (and ten times that if too many people complain) - well beyond the means of most bloggers. Secondly, there's absolutely no benefits in doing so. Belonging to OMSA simply exposes you to a complaints mechanism, which can and will be used by the sewer to silence people (and to stick them with the bill for full membership). Why would anyone sign up to that?

Five years later, I've finally received a response. Its not complete, but I have received a copy of the report, sans witness statements, one name, and a small amount of legally privileged material. Reading it, there seems to be nothing to justify Immigration's 2009 decision to withhold it. So what wasn't it released?

Here's a hint: my request was tagged as requiring Ministerial consultation (a decision which boggled at least one of the staff handling it). And the Risk Impact Sheet is pretty explicit:

Requestor is not a journalist, but is believed to be politically active. The information shows that the Department did not adhere to its own processes... if the media became privy to this information they may portray the Department as not being able to follow its own processes.

So, the information was withheld because it might embarrass the department. Which is not a lawful reason for withholding.

Getting a decision on a FAQ error should not have taken five years. But that's what happens when you starve the watchdog: they fall behind, and even simple complaints don't get processed. Which means that unlawful decisions by departments go unpunished, while the public loses faith in the OIA and in government as a whole.

Meanwhile, this also illustrates just how control-freaky National is about the OIA, and how they expect Ministers to have signoff over everyday requests to departments. Which makes John Key's denials that he ever saw Cameron Slater's expedited request to the SIS that much more unbelievable.

When evidence emerged yesterday that John Key had been briefed on Cameron Slater's expedited OIA to the SIS, he was quick to deny it. Apparently when the SIS director and the Ombudsman referred explicitly to "discussions with the Prime Minister", they meant discussions with unnamed people in his office, who never told him. Then he claimed to have been on holiday. All of which sounds plausible (especially when the Ombudsman backs him), except for one thing: its not what he said at the time:

Mr Key referred to the briefing from Dr Tucker while being questioned about the matter during his post Cabinet press conference on August 8, 2011, in the days following the document's release.

Responding to persistent questioning from then Scoop editor Alastair Thompson and Herald political editor Audrey Young, Mr Key said: "What happened is Warren Tucker didn't come to me, he went to his legal adviser and his legal advisers told him this is the process they have to follow and when he was going through that process it was at that point he told me he'd release it because he has to tell me that under the no-surprises doctrine."

[Emphasis added]

So, who are we to believe? Key-now, with fading memories and every reason to lie, or Key-then, with an immediate grasp of events and none? I think that's a no-brainer. Key is lying to us to minimise his role in National's dirty politics. And the fact that he feels the need to lie tells us something important: his sticky fingers are all over it.

Thursday, August 21, 2014

Why would an overseas buyer pay more for an asset than a New Zealander? Is it because they can accept lower returns on capital? Perhaps. Is it because they can sweat the asset more? Again, perhaps. But Chalkie reckons one reason stands out - tax.

There are huge tax advantages available to overseas investors that simply cannot be accessed by locals. They crank up the returns available to foreign buyers and make New Zealand assets worth more to overseas owners than to New Zealand residents.

The article uses Wellington Electricity Distribution Network, which has paid virtually no tax due to being piled with high-interest, related-party debt to a company in a tax haven by its foreign owners, but the practice is apparently widespread. The result is both that we get bought out of our own country because NZ assets are more valuable to foreigners than they are to us, and meanwhile our government gets starved of revenue by tax-cheating sociopaths.

There is an easy solution to this: put the effect on taxation in the Overseas Investment Act. If foreign ownership would see less tax paid in NZ, then that's a reason to refuse a transaction. Simple.

The Future of England Survey found that people south of the border are overwhelmingly against Scotland leaving the UK, with 59 per cent saying they would like the Union to stay intact and only 19 per cent favouring separation.

But it also showed that English opinions over what should take place after the referendum differ widely from the scenarios on which politicians on both sides of the debate are pinning their hopes.

[...]

However, in a blow to the Better Together campaign, the survey also shows that English people would be in favour of the UK Government taking a much tougher stance on Scotland if it decides to say in the Union.

Most of those polled (56 per cent) agreed that public spending in Scotland should be reduced to the UK average following a No vote, while the vast majority (63 per cent) believe that Scottish MPs should be prevented from voting on English laws in the future.

Meanwhile, UKIP explicitly wants to roll back devolution, which will place pressure on the Conservatives and Labour to do likewise. The upshot: English politicians are making promises they can't keep, and there's a real chance that Scotland will be stripped of its parliament and made to share the misery of the rest of the UK if it stays. If Scots want to retain what they've got, they need to get out of this abusive, colonial relationship now, while they still can.

ESPINER: Well let’s have a look at some of those specifics in the book. Cameron Slater gets an OIA request granted from the SIS which embarrasses Phil Goff. It’s approved in a few days, which is unheard of for information to be released that quickly, especially from the highly sensitive SIS.

KEY: Well

ESPINER: Did that did that request come across your desk?

KEY: No.

ESPINER: So you’re the minister responsible for the SIS, yet you did not sign off on that request?

Following discussion with the Office of the Ombudsmen, in relation to your request of 4 August, I can confirm that there was no written "correspondence with the Government and the Office of the Prime Minister regarding the NZSIS decision to release information to Mr Cameron Slater". I notified the Prime Minister (in accordance with my usual practice to keep the Minister informed on a "no surprises" basis) that I was going to release redacted documents in response to the request from Mr Slater. I advised the Prime Minister that I had received legal advice that there were no grounds for withholding the information given the public disclosures already made about the existence and some of the content of the briefing. I informed the Prime Minister that I had informed Mr Goff of my decision to release the information.

Update: Tucker is now saying that when he said "Prime Minister", he meant the Prime Minister's office. But further documents released by NewstalkZB show that he told the Ombudsman that he had had a "discussion with the Prime Minister". So, it looks like that desperate rearguard action doesn't stack up either. Key is lying to our faces. Are you going to tolerate that, or vote him out on his arse?

Slater's request (via Donotlink) was made on 26 July and responded to on 2 August - a turnaround time of 5 working days.

There are five successful requests to the SIS made via FYI. These were responded to in 8, 24, 12, 49, and 26 working days respectively, for an average of 23.8 working days.

I think that speaks for itself. Slater's turnaround time was the fastest ever observed by the SIS. And I think its pretty obvious why: someone in the Prime Minister's office told them to hurry it up.
Whether this violates the SIS's statutory duty of political neutrality is left as an exercise to the reader.

There's been another Whaledump this afternoon, this time of Facebook messages with Aaron Bhatnagar. As expected, it confirms everything alleged in Dirty Politics. Unfortunately, in addition to this public interest material, it also includes a vast amount of material of no public interest at all, or where there are significant privacy interests, so I won't be linking to the raw material.

And in related news, the Inspector-General of Intelligence and Security has opened an investigation into whether the SIS violated political neutrality in its handling of an OIA from Cameron Slater, and whether the material was properly declassified. It'll be interesting to see what comes of that.

It also seems to be fiscal rectitude day, with both major opposition parties promising to "live within our means" and run bigger surpluses than National. But while they're both promising balanced books, that doesn't mean conforming to National's austerity madness; instead, both parties are offering to increase government revenue through capital gains taxes and higher taxes on the rich. Which, given that 97% of kiwis aren't rich and never will be, should be popular.

Running balanced books is a Good Thing. So is borrowing for investment, and to cover necessary costs during disasters or times of economic trouble. Labour has a good record on this - while National likes to paint it as nine years of profligate spending, the fact is that Michael Cullen consistently delivered surpluses, which were reinvested in building better social services for ordinary kiwis. I think we can trust them and the Greens to do the same if elected.

Assuming of course that they aren't dealt a BNZ-scale surprise by National fiddling the books. Campbell Live reported last night that EQC had failed to file financial projections for next year (in violation of the Crown Entities Act), and that this could have a significant effect on the government's balance-sheet. No-one from the government would front up to explain this, which suggests they're hiding something (namely, a billion dollar budget hole). Meanwhile, the government published its Pre-Election Fiscal Update, showing they'd meet their surplus target. But given the government's refusal to front on the EQC news, I'm not sure that we can trust it.

The government needs to front up on this. It also needs to enforce the law on EQC. Failure to file those statements is a fundamental failure by the EQC board to do their job, as well as contravention of statute. They need to be sacked and prosecuted. Knowingly preparing a false or misleading PREFU is a criminal offence punishable by 12 months imprisonment. If Treasury has any suggestion that EQC's financial position is worse than that stated, then they should be looking at the inside of a jail cell.

Correction 25/08/2014: I've since realised that EQC did not breach its statutory reporting requirements. A full correction is posted here.

The Governor General, Lt Gen The Rt Hon Sir Jerry Mateparae, has given the green light for this year’s General Election.

The Governor General has signed the writ directing the Electoral Commission to conduct the General Election on 20 September 2014. This is the formal authority to run the 2014 election, and enables candidate nominations to open tomorrowThursday 21 August 2014.

“The issue of the writ is a key constitutional step in the election process. The writ sets out the dates for candidate nominations to close, election day and the date the writ must be returned showing the successful electorate candidates,” says Robert Peden, Chief Electoral Officer.

The fact that we do it this way is a sad relic of our monarchical past, when Parliament served the monarch rather than the other way round. And while we've put some of it on a statutory basis, it would be better to eliminate such vestiges.

I'm not doing so out of naiveity; I agree with Trotter on the essentially Hobbesean pact which underlies democracy, that its a gentler way of solving issues that used to be solved by civil war and murder. And I've read my Machiavelli and agree that being an effective ruler may sometimes demand immoral methods. But that doesn't mean that all is fair and that we should accept what we have seen. To point out the obvious, if being an effective ruler demands immoral methods, one can always choose not to be effective - or not to be a ruler. In the C16th when Machiavelli wrote, that choice was effectively suicide, or at the least impoverishment and exile. In the modern era, the consequences are rather less severe.

Our politicians make choices. How far they are willing to go to get what they want and to stay in power is one of those choices. The ruling clique in the National Party has clearly chosen to delve into the sewer and behave like sociopaths to keep themselves on top. Other parties - and indeed, others in National - would clearly make a different choice. The choice as to which ones get to run the place, and therefore how much of this toxic crap we have in our political system, that's up to us.

I can't stress that last point enough. We get to hold politicians accountable for their choices. And in 31 days, we'll have a chance to do just that. So, if you reject National's dirty politics, vote the fuckers out. And hopefully, whoever replaces them will get the message that this sort of shit just isn't acceptable.

Labour Party leader David Cunliffe says if he was Prime Minister he would hold his ministers to a higher standard than John Key does.

[...]

David Cunliffe told Radio New Zealand's Morning Report programme Ms Collins' behaviour was unbecoming of a minister, especially a Justice Minister who is meant to uphold and guide the formation of the law.

He said if Ms Collins was a minister in a government run by him, she would be gone.

"There would be a huge difference in the standards that I would hold my ministers accountable to and the way that the Prime Minister is treating the Minister of Justice."

The full audio is here. And if he becomes Prime Minister and shows any reluctance to enforce high standards on Ministers, we can beat him with it.

Statutory recognition of Māori as the indigenous people of Aotearoa. Symbolic, but hugely significant all the same.

Completing all historical Treaty settlements by 2020. Its good for the government to prioritise this, but as with the claims deadline, I'm afraid it may lead to injustice and iwi being pressured to agree to settlements to meet an arbitrary target. There's potentially some protection against this with the proposal of an independent body to recommend settlements where the government has taken too long - or it could just be a tool to force iwi into one-sided (and therefore not unsustainable) "settlements". Labour will need to do a lot of hard work to get this right, and show a lot more good faith than they have in the past.

Post-2020, a review of the role of the Waitangi Tribunal. This follows naturally from the settlement deadline, but its dangerous ground. The Tribunal isn't just a backward-looking body focused on investigating past wrongs, but one which rules on the government's ongoing Treaty obligations as well. There needs to be more reassurance that that role will not be weakened.

So, potentially some good policies there, but a big problem of trust for the party of the Foreshore and Seabed Act to overcome.

Meanwhile, I'm wondering whether Labour's 2008 claims deadline led to the effects I'd feared or not. Have iwi been denied justice for their failure to jump through arbitrary procedural hoops? Or did it work as a spur to action? I'm genuinely interested in knowing.

Monday, August 18, 2014

The Greens have announced their tax policy: an increased top tax rate of 40% on earnings over $140,000, with the billion dollars of extra revenue targeted towards reducing child poverty. That looks like a good deal to me. Child poverty is a moral stain on our society which blights lives and denies people a decent chance in life. It also costs us a fortune. Money spent to reduce it is not a cost, but an investment, which pays off through reduced future costs for welfare, health and crime. And it speaks volumes that our current government is too short-sighted to see that.

So, the biggest political scandal of the year happened while I was busy, and I still haven't had time to read the book yet (I'm hoping to get to it this afternoon). From what I've read, I agree with Danyl and Andrew: this is a toxic style of politics which we shouldn't stand for, and those who practice, use, or even condone it need to be voted out on their arses.

Meanwhile, amidst his unconvincing denials this morning, John Key admitted that his staff were "briefing the bloggers" as part of the government's media management strategy. Those staff are paid with public money, and that media management is official government business - which makes those briefings "official information". Which means we can demand its release under the OIA.

Of course, any request for all briefings to bloggers will be refused as requiring substantial collation and research, but there's a way round that: crowdsourcing. As I've just tweeted: pick a month, email "j.key@ministers.govt.nz" (or use the FYI form here) requesting all briefings to bloggers by him and his staff made during that month, demand urgency due to the high public interest in political accountability and the upcoming election. If they don't indicate that they'll respond to it in the two days they do for their pet dirt-dealers, complain immediately to the Ombudsman on "info@ombudsman.parliament.nz". The Ombudsman has previously indicated in the student-loan costings decision that requests for significant information around election-time have heightened public interest, and that should help.

I'm doing July 2014. Someone else is doing June. There's an FYI request in for May-August, and I'm sure there'll be others. Join the crowdsource, and help expose how National's dirt machine works.

Wednesday, August 13, 2014

When confronted with evidence about our low-wage economy, business claims that wage increases have to be justified by increases in productivity. But as the graph below shows, productivity has increased massively, but employers have welched on their end of the deal:

How have they been able to get away with this? Because the Employment Contracts Act tilted the balance towards bosses and enabled them to artificially suppress wages. And even Labour's reforms under the Employment Relations Act didn't do much to change the trend.

‘Behind the seemingly benign term “certification” hides an extraordinary power that the US is expected to assert if the Trans-Pacific Partnership Agreement (TPPA) is concluded’.

‘Effectively, the US claims the right to decide what a country’s obligations are under a trade and investment agreement and refuses to bring the agreement into force in relation to that country until it has changed its laws, regulations and administrative processes to fit the US interpretation’, Professor Kelsey explained.

Statements from members of US Congress and the US Trade Representative (USTR) suggest prime targets for New Zealand would be our copyright and patent laws, the foreign investment vetting regime, the procedures by which Pharmac operates, and Fonterra’s ‘anti-competitive monopoly’.

‘The other eleven governments are aware of the certification process and many are concerned. But no one has told the public how the US can effectively redraft our laws.’

Its bad enough when treaties are made in secret without any public input, but this is a step beyond that into pure economic colonialism. If the US wants to use the TPPA to do this we should tell them to go fuck themselves. Free trade is not worth our sovereignty, or our democracy.

The Government is bracing itself for revelations about the extent of New Zealand's role in the Five Eyes spy network as author Nicky Hager prepares to unveil his latest book.

Hager is keeping silent on the subject of the book but Prime Minister John Key yesterday said he could not rule out the likelihood that Hager had obtained leaked documents from former American defence contractor Edward Snowden.

The book is being released in Wellington today and Hager was not distributing advance copies. He also refused to discuss the subject.

I can think of a number of subjects it could be about, but surveillance is the obvious one. And if so, its likely to be highly damaging to the government and the deep state. Which invites the obvious question: will National try and have it banned as an "election advertisement"? Remember, according to the courts books aren't journalism...

Meanwhile, if you're attending the book launch tonight (17:00 at Unity in Wellington), you can probably play a fun game of "spot the spook". But please remember that thanks to Robert Muldoon, its a criminal offence to call a spy a spy, so be careful with your photos.

Tuesday, August 12, 2014

New Zealand has come first in a global index that ranks countries by social and environmental performance rather than economic output in a drive to make social progress a priority for politicians and businesses.

The Social Progress Index (SPI), published on Thursday, rates 132 countries on more than 50 indicators, including health, sanitation, shelter, personal safety, access to information, sustainability, tolerance and inclusion and access to education.

It asks questions such as whether a country can satisfy its people's basic needs and whether it has the infrastructure and capacity to allow its citizens to improve the quality of their lives and reach their full potential.

This highlights the narrowness of the National government's vision. All they care about is economic growth (for the rich), and they're willing to sacrifice anything - including social equality, our environment, and our human rights - to get it. But its those things which make us a decent country to live in, not coal mines, oil rigs, and dairy farms.

...which is a perverse result. What the Electoral Commission is telling us is that insofar as it can be viewed as persuasive, broadcast political satire is illegal. And I'm not sure that that really fits with their BORA obligation to interpret the law so as to be consistent with the right to freedom of expression. OTOH, it might explain why political comedy has disappeared from our television screens: because the politicians have outlawed it.

(And in case you're wondering: while apparently an "election programme" under the Broadcasting Act, that video isn't an election advertisement under the Electoral Act, for the simple reason that it is very obviously not an ad. So I don't think there's any problem posting it on the web, or performing it live outside Parliament).

National gifting ACT Epsom by telling their voters to vote for the ACT candidate is fine, an example of ACT's "no handouts... free-market party of do-it-yourself, pull your own socks up, don't expect other people to do it for you" philosophy in action.

Labour trying to thwart this by telling their voters to vote for the National candidate is a "dirty tactic"

"We're not playing God on this. That natural process will determine what happens to adaptation of human beings and other mammals and species," he said.

So basically National is going to leave it to fire and flood to determine where we live. Which is pretty much their approach to the economy as well. Which makes you wonder what those fat ministerial salaries are being paid for, if the Ministers are unwilling to ever do anything.

The Greens announced their vision for Christchurch today: public transport, no asset sales, the restoration of democracy, and funding for the planned Avon-Otakaro River Park. It looks pretty good. The public transport stuff looks like a great response to the population shifts caused by the earthquakes, and it looks pretty cheap as well: all the lines are already in place, the carriages are surplus after Auckland's electrification, so its just a matter of scheduling and feeder buses. Forgoing Gerry Brownlee's white elephant stadium to avoid asset sales also seems like a no-brainer. As for the restoration of democracy, this is a fundamental, and as I've pointed out earlier, can be achieved with the flick of a pen (at which stage much of the law repeals itself, the rest following by Order In Council).

Overall, it looks like a pretty good plan. Christchurch voters now have a clear choice between a city controlled by them and one controlled by Gerry Brownlee. It'll be interesting to see how much earthquake issues shift the vote down there.

Monday, August 11, 2014

I think the time has come to consider creating an independent tax authority, ‘under renewable contract’ to Parliament. The tax authority would be tasked with achieving revenue targets subject to operating within prescribed limits set by Parliament such as the balance of revenue to be collected between income, wealth and expenditure taxes, goals relating to redistribution from rich to poor, and the parameters of some specific corrective taxes such as those currently on tobacco, booze and fuel. This is just like the ‘policy targets’ agreement the Reserve Bank has with Parliament.

Beyond that, the authority would be free to design the tax regime that would collect the revenue in the most efficient way. Assuming they chose the right chief, the tax authority would be governed by the widely accepted principles of a good tax system – fairness, efficiency and simplicity.

All of this probably sounds great to technocrats. But what it means in practice is that decisions about who pays what will be made by people who are unelected, and hence unaccountable. Morgan doesn't see that as a bad thing, because he views democracy as the problem here - politicians wanting to get re-elected "distort" policy away from efficient and optimal solutions. While I agree with some of those solutions (such as land taxes and wealth taxes), I cannot agree with the idea of imposing them without any democratic mandate. Nor can I agree with unelected philosopher-kings. The problem with unaccountable rulers is that they are completely free to work against you - and given the dominant ideology amongst modern technocrats, that's pretty much a certainty.

As I've said before, democracy isn't about making good decisions, but our decisions. Its not about producing optimal policies, but about moderating conflict and reaching a solution everyone can live with and regard as legitimate. With unaccountable philosopher-kings, the only way to change their decisions is to murder them. I would rather not introduce that level of bloodshed into our political decisions. Instead, I'll murder my political opponents symbolically at the ballot box this September, and accept suboptimal policy as the price I pay for a peaceful society.

Recently the United Nations High Commissioner for Human Rights published a report on The Right To Privacy In The Digital Age. The report is highly critical of the US-led Five Eyes spying revealed by Edward Snowden and concludes that it violates international human rights law, notably the ICCPR-affirmed rights to privacy, non-discrimination and an effective remedy.

A couple of weeks ago, someone pointed out to me that the NZ Human Rights Commission had submitted on this report. The short version:

The HRC thinks the GCSB and TICS laws violate both the BORA and international law;

They want a full and independent inquiry into digital spying. The Intelligence and Security Committee Act's statutory review provision is the default vehicle for this, but they are concerned about its independence;

New Zealand has been hypocritical on the world stage, supporting UN resolutions against digital spying while passing laws which violate those resolutions;

We've had a "please explain" from the UN Human Rights Committee about this, and the GCSB and TICS Acts are squarely on the agenda for our 2016 Universal Periodic Review of human rights.

Reading between the lines, John Key's spy bills are going to come back to bite us hard. New Zealand is going to get pilloried by the UPR, and we may be subject to ICCPR complaints. This will have consequences for our international reputation, which our entire foreign policy depends on. Just another example of how spies damage rather than protect our national interests, and how we are better off without them.

We're supposed to trust the police. We're supposed to believe that they'll keep us safe and ensure that the law is exercised and justice is done. But how are we supposed to do that when they can't even swear themselves in properly?

Drug dealers, burglars and drink-drivers have walked free after a police botch-up led to officers carrying out illegal investigations.

In a major embarrassment for Police Minister Anne Tolley, officers returning to the force were incorrectly sworn in, meaning criminal charges had to be dropped.

As the article points out, this is the third time this has happened. Police have routinely failed to swear in their constables properly, requiring urgent patch-up legislation in 2009 and 2013. You'd think tha tthey'd have learned to do it right after one such monumental fuckup, but no - they're still making the same mistake five years later. Its enough to give you the impression that they don't actually pay attention to the laws they're supposed to enforce, and instead just do whatever they want. And it doesn't exactly improve the reputation of the police; instead they look like the muppet show.

This isn't acceptable. It has resulted in people escaping prosecution. Those responsible need to be held to account for this. Sadly, I think thats about as likely as a vigorous investigation of electoral law violations.

Friday, August 08, 2014

Yesterday I pointed at a post from Andrew Geddis, about the Canadian police's use of an investigative technique called "Mr Big" to extract confessions. The subtext of Geddis' post was that the New Zealand police were using this tactic, but that the details had been suppressed by the courts.

Thanks to a few helpful people, I can now confirm that they do use it. The police call it "scenario evidence", and its use is a matter of public record. There are details about the technique in R v. Cameron [2009] NZCA 87. In that case, the Court of Appeal found that the confession was not improperly obtained, and the Supreme Court declined review.

They also appear to have used it against Mathew Ellery, resulting in a guilty plea before the case went to trial.

This should be deeply troubling. As the Canadian Supreme Court has just highlighted, "confessions" extracted in this manner can not be considered reliable, and it is impossible for defendants to challenge them in court without strongly prejudicing a jury against them. Using such tactics creates a very real possibility of creating a miscarriage of justice, and by doing so, undermines the justice system (not to mention public trust and confidence in the police). The sooner a court outlaws it, the better.